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An estimated 9-minute read
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Bikram Chaudhuri

(Partner and Head of Litigation & Dispute Resolution

Abhay Nevagi & Associates, Advocates)

Who among us has not been entranced by the drama and intrigue of a legal trial? The annals of legal literature, both fictional and historical, have highlighted countless lawyers whose wit and brilliance has dazzled the public as well as the students and practitioners of law alike. The creative arts have often explored and exploited the emotional odysseys of trial law, in the process critiquing many a social dogma or championing human rights, or even serving as social commentary for their times. In the trial of Antonio caused by Shylock, it was the delicate heroics of Portia that saved the hapless Merchant of Venice from a gruesome death through the exercise of sheer common sense. Atticus Finch defied the crushing pressure of bigotry to save the life of a man whose only crime was that he was not born Caucasian, in the process showing legions of lawyers what and who they should be. Perry Mason’s devious brilliance in and outside the courtroom helped him proclaim the innocence of his own clients by declaring the guilt of others. Tom Cruise’s character, Lieutenant Daniel Kafee in ‘A Few Good Men’ proved that not only could he handle the truth, he could squeeze it out of an enraged Colonel Nathan R. Jessup, impeccably played by Jack Nicholson. How many impassioned speeches, caustic quips and pointed stares has James Spader’s Alan Shore thrilled us with?           

Then again, what do most lawyers whom we have loved to watch, listen to or read about, have in common? The answer is that they are typically preferred as criminal defense attorneys. From either a real-world or a creative perspective, the job of a prosecuting lawyer is hardly glamorous. Oddly enough, the stories of the suspected bad guys and their highly paid lawyers tend to foster far more artistic and literary expression than their victims. The exceptions, where the roles of the prosecutor have been given more prominence, are usually portrayed as the prosecuting lawyer finding his innate goodness or revulsion to all things evil, rather than as a laudatory acknowledgment of the State’s prosecutorial machinery in convicting dastardly deeds.

On the same footing, the criminal prosecuting attorney in an Indian court of law is hardly given his / her due. According to the National Crime Records Bureau of the Government of India, the all-India conviction rate of IPC crime cases during 2014 was at 45.1%, a statistic which shows that more than half the crimes tried before criminal courts in the country end up in acquittals. That cannot be considered a healthy statistic, even if one makes allowances for the instances of false and malicious prosecution that continue all the way up to a verdict. At the end of the day, the onus of a criminal trial ending in a conviction lies on the prosecution, which includes the police and the public prosecutor’s office. One does not often come across an item in the newspapers extolling the virtues of a prosecuting lawyer in obtaining the conviction of the accused in a criminal trial. It is equally uncommon to come across a law student from a premiere law school or university in the country stating that he/she wishes to be a public prosecutor.

Yet, the position of the public prosecutor is critical in a civilized legal system governed by the rule of law. The Kerela High Court, in its judgment in Babu v. State of Kerela[1] described the role of the public prosecutor rather succinctly, by stating that they “are not representatives of any party. Their job is to assist the court by placing before the court all relevant aspects of the case.” Regrettably, for the honest public prosecutor, his is also a thankless and relatively low-income job. It’s a small wonder that the best legal minds are not often the ones prosecuting criminal cases.

Then again, why can’t they be? It is a common misconception that criminal prosecution is only the lot of the public prosecutor’s office. This is not strictly true. In fact, the Code of Criminal Procedure, 1973 specifically enables private persons and their pleaders to conduct or assist in conducting prosecutions with the permission of the court. Section 301 of the Code puts the responsibility on the Public Prosecutor or the Assistant Public Prosecutor in charge of a criminal case to conduct the prosecution. However, Section 301(2) allows a private person to instruct a pleader to prosecute any person in any Court, in which case such a pleader shall act in such a case under the directions of the Public Prosecutor or the Assistant Public Prosecutor, and may also submit written arguments after closure of evidence in the case with the permission of the Court.

Section 302 of the Code is of even wider import. It empowers any Magistrate inquiring into or trying a case to permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector. A private citizen can, thus prosecute his own criminal complaint, subject to the permission of the Magistrate inquiring into or trying the case. And he can do so either by himself or through a pleader.

This position has been recently reiterated by no less an authority than the Supreme Court of India in the case of Dhariwal Industries Ltd. v. Kishore Wadhwani & Ors.[2] In that case the Appellant Company, which was the original Complainant, had lodged a private complaint under Section 200 of the Code of Criminal Procedure, 1973 before a Magistrate for various offences. The Magistrate passed directions under Section 156(3) of the Code to the police to investigate the offences. The police registered an FIR and laid a charge sheet before the Magistrate. The Magistrate took cognizance of the offences made out in the charge sheet after which the case was registered as a criminal case before him. Before the charges could be framed by the Magistrate, the accused persons filed an application for discharge under Section 239 of the Code. At that juncture, the Appellant / original Complainant orally sought the permission of the Magistrate to be heard along with the Assistant Public Prosecutor, which permission was granted by an order. The accused persons challenged this order before the Bombay High Court. The High Court read the provisions of Section 301 of the Code and stated that the Appellant/ original Complainant could only act under the directions of the Assistant Public Prosecutor. The Appellant approached the Supreme Court challenging the limitation imposed by the High Court. The Apex Court clarified the provision of Section 302 of the Code in respect of criminal cases before Magistrates, stating that the original Complainant must make a written application to the Magistrate seeking permission for conducting the prosecution independently. If such an application is made, the Magistrate has to form an opinion on whether the cause of justice would best be subserved if permission is granted, in which case it would be better to grant such permission. Once permission is granted, the original Complainant or his lawyer can prosecute the case. The Supreme Court has further specified that Section 302 applies to every stage of trial, including the stage of framing of charge (which was the stage at which the original Complainant had orally applied for permission to be heard in this case). The Supreme Court considered its earlier judgments in J.K. International v. State (Govt. of NCT of Delhi) and others[3] and Shiv Kumar v. Hukam Chand and another[4] to explain the purport of Sections 301 and 302 of the Code, and essentially stated that while Section 302 applied specifically to Magistrate courts, the limitations imposed by Section 301 on the original Complainant to be a part of the criminal trial would apply to all other courts without exception.   

The judgment of the Supreme Court in Dhariwal Industries does not put forth a radically new proposition, but it does highlight an oft neglected right of private complainants to participate in the criminal proceedings initiated by them. The Supreme Court, while allowing the Appellant Dhariwal Industries to apply to the Magistrate under Section 302 of the Code, has not laid down any specific guidelines that a Magistrate should follow while considering the application, save that the Magistrate is to see whether the cause of justice would best be subserved if the Complainant prosecuted the case. This is undoubtedly a subjective and highly open-ended proposition. Yet, the judgment can still be relied upon to enable private complainants to seek justice in otherwise State-conducted criminal trials. The provision in Section 302 of the Code can be employed strategically at any stage of the criminal trial process, such as in a hearing on an application for discharge made by an accused before charges are framed by the Magistrate in a warrant trail, or even at the final hearing of the matter. The Supreme Court, by stating that Section 302 of the Code applies to every stage of trial, has made it effectively possible for the private Complainant to even apply for permission to participate in the evidentiary hearings and cross-examine the witnesses put forth by accused persons.

There is, of course, the possibility of abuse of the provision of Section 302 of the Code, which can be resorted to by unscrupulous Complainants to harass people, especially when police investigations do not reveal sufficient evidence to proceed with a trial. On a practical front, the idea of the private Complainant carrying on a parallel prosecution alongside the public prosecutor may also lead to the inevitable presupposition that the usual inordinate delays in criminal trials may be further exacerbated. Yet, the potential for abuse of the provision must be weighed against the potential for more effective justice for victims of crime, which is ultimately in the best interests of society. A private Complainant, by virtue of Section 302 of the Code, can be a more active part of the prosecution against his aggressor. Furthermore, since the Magistrate is required to consider a written application of the Complainant seeking permission to conduct the prosecution, and has sole discretion in respect of the same, the necessary check against unscrupulous Complainants is already in place in Section 302 of the Code.    

The provision in Section 302 of the Code is also a good way to involve highly-skilled lawyers into the criminal prosecution process in order to ensure better and elevated efforts to deal with serious crime. The criminal justice system should be a deterrent for the perpetrators of crime and not for their victims. The Supreme Court has reminded us that it is not only the accused who have access to big-ticket lawyers to bail them out and help acquit them of crimes. The victims of crime can just as well avail the services of the best lawyers to prosecute the perpetrators, especially if their trial is to take place before a Magistrate.


[1] (1984) Cr LJ 499 (Ker).

[2] Criminal Appeal No. 859 of 2016, decided on September 6, 2016.

[3] (2001) 3 SCC 462

[4] (1999) 7 SCC 467

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